The case of Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014) has seen the court strike down a U. S. Citizen and Immigration Services ruling that knowledge gained from “upbringing, family and cultural traditions, and overall assimilation to one’s native culture” should be considered general, rather than specialized knowledge. The debate over general versus specialized knowledge is rather central to cases involving an L1B, a non-immigrant visa program created in the 1970 Immigration and Nationality Act that enabled multi-national companies to transfer qualifying employees—executives, managers, and those with specialized knowledge—to the United States.

Fogo De Chao, it would appear, would be such a company built to thrive under the L1B program, and it did for a long time. A chain of Brazilian steakhouses operating restaurants in both Brazil and the United States, Fogo De Chao had transferred more than 200 employees on L1B visas between 1997 and 2006, specifically its churrasqueiros, the gaucho chefs trained in the culinary meat grilling traditions of their southern Brazilian homeland. The 2010 case of Rones Gasparetto seemed to follow a similar protocol to Fogo’s previous modus operandi: the company would hire an aspiring churrasqueiro, already trained in the ways of southern Brazilian cowboy culinary culture, then train him in the formal ways for the restaurant. After a year or two of working in one of the chain’s Brazilian operations, Fogo De Chao would apply for an L1B, transfer the chef to an American restaurant, and then have a professionally-trained employee with authentic cultural knowledge set to impart the business model to American employees.

With the 2010 application for Mr. Gasparetto, the company hit an L1B snag, posing a threat to Fogo De Chao’s pipeline of chef’s specializing in the preparation of specially-seasoned, barbecued meats. While he had been working as a churrasqueiro chef, both for a Fogo De Chao-affiliated restaurant and others, USCIS called into question the evidence of his specialized knowledge. The agency failed to draw the line between Mr. Gasparetto’s churassco heritage and his specialized knowledge of the company’s product, instead ruling that his expertise fell into a more general knowledge category ineligible for L1B consideration. The district court upheld the USCIS decision, deferring to the agency’s interpretation of specialized knowledge—a notion that has evolved many times since the establishment of the Immigration and Nationality Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C. 2013).

Fogo De Chao, ultimately, found its lifeline in the appellate court decision just handed down. The appellate court overturned the district court’s decision to allow the agency deference to interpret its own ruling under the immigration statute under Chevron, reasoning that nothing in the statute precludes taking culturally acquired knowledge into consideration as specialized knowledge. While the court went short of saying that USCIS had been inconsistent in its treatment of Fogo De Chao in the course of its dozens of L1B applications, it did say that the agency’s established policy and guidance surrounding the notion of specialized knowledge had not previously excluded cultural knowledge, as it had with Mr. Gasparetto, from consideration.

Our clients often ask us if paying $1225 for premium processing is worth it. We often give the lawyerly response and say, it depends. Immigration law is so complex that no two cases are the same. Sometimes paying extra for expediting a case is worth it and at other times it’s not. Here are some of our thoughts on the subject:

If you file an EB-1 Extraordinary Ability case under premium processing, you are going to increase your chances of receiving an Request for Evidence (RFE). Why? All the USCIS officer has to do within 15 days is approve the case or issue an RFE. Once they do that, they do not have to return the $1225 USCIS filing fee. Since EB-1 cases are quite complex, sometimes officers simply cannot review the case within 15 days given their case load. Thus, they automatically issue an RFE to ‘buy time.’ Of course, that is not always the case, but it’s something to consider when deciding whether or not to use the premium processing program.

Are you on L1 status and filing an extension shortly before your expiration date? You might want to file the case under premium processing. The USCIS is increasingly scrutinizing L1 cases, so you want to know quickly what is going to happen to your status. That way, you can plan your future without being rushed to do it.

If you are outside the US and want your prospective employer to file a TN application with the USCIS instead of applying directly at the port-of-entry, file the case under the premium processing program. You’ll probably want a quick decision on the case.

Are you an Information Technology professional and your employer is filing an H-1B extension, amendment or transfer? Don’t fear the premium processing program. Just document the case well!

As you can tell, there’s isn’t an easy answer to this question. There are hundreds of differnet scenarios to consider when using premium processing, the least of which is simply timing. However, we think it’s worth it in many cases based on one word:

ACCESS!

Filing a case under premium processing provides you, your employer and/or attorney the opportunity to call or email the USCIS officer handling the case. This is not available in regularly-processed cases.

We can’t tell you how valuable this access can be in getting complex cases approved. It’s certainly something to think about when deciding whether or not to pay an extra $1225 for your case.

A few months ago, I was watching an episode of Arrow with my 11 year-old nephew, Rohan. In that episode, the CEO of Oliver Queen’s (aka Green Arrow’s) company, Queen Consolidated, mentioned that the company had an Applied Sciences division. I immediately turned to Rohan and said, “everybody has an Applied Sciences division! Queen Consolidated has one, and Wayne Enterprises has one too.”

And then it hit me!

Bashyam Spiro & Coats needed to start an Applied Sciences Division as well! If Batman and Green Arrow run successful companies with an Applied Sciences Division, then so should we. After all, it’s my job as the Managing Partner of this business to keep us on the cutting edge of knowledge and technology!

That’s why we’ve been silent on this blog since last May.

We’ve been working really hard at establishing the first ever Applied Sciences Immigration Division at a law firm. Leading our efforts as the head of the division is my nephew, Rohan. Despite his young age, he is the perfect ‘diabolical creative genius’ type to create the systems that will revolutionize the immigration industry. Of course, we are working on many other things as well, but that will have to stay top-secret for now.

At the right time, all will be revealed!

In the meantime, we will regularly post new and interesting blogs on this site in 2014. We will also be changing our law firm name to Bashyam Enterprises Consolidated.

Many of our clients ask if the Oath Ceremony is on the same day as their naturalization interview. Right now, the answer is ‘no.’

If all goes well at the interview, you will receive an “Oath Notice” around 2 to 4 weeks after the ceremony. The Oath Notice will provide instructions as to the time and place where your Oath Ceremony will be held.

Most naturalization oath ceremonies are conducted at the local USCIS office where the interview occurred. However, on occasion, USCIS will schedule the Oath Ceremony elsewhere—usually as part of a special event. For example, the Raleigh/Durham USCIS office conducts an Oath Ceremony once a year in Southport, North Carolina as part of the official North Carolina 4th of July Festival. Southport is located on the North Carolina coast, about 2 1/2 hours from Raleigh.

In the past, some clients have really enjoyed the ceremony in Southport. Others would have preferred to take the Oath at the local USCIS office given the long drive, holiday crowds at the beach, and boiling July temperatures. Unfortunately, Immigration Officers do not routinely bring up possible Oath Ceremony locations at the interview. However, if the Officer has told you that he or she has recommended your case for approval, it’s ok to ask about locations yourself. Most officers will be as accommodating as possible in regards to your preferred location for the ceremony.

Regardless of the location, USCIS does a nice job with Oath Ceremonies. Your loved ones are invited to attend the Ceremony with you and cameras are allowed as well. If you have an Oath Ceremony scheduled soon, congratulations on becoming a U.S. Citizen!

Many employment and family-based categories have had severe visa availability backlogs for quite some time. In fact, in certain situations, permanent residency applications can easily take well over a decade. The Senate Bill (s.744) addresses this issue by exempting derivative family-members, and some physicians and PhD holders, from the annual-limits for employment-based immigration. The legislation would also allocate additional visa numbers to those foreign students who graduate with advanced degrees in Science, Technology, Engineering and Mathematics. These provisions will help clear the backlog and make employment-based permanent residency a faster process for intending immigrants.

The legislation will also have a significant impact on family-based immigration. Right now, there are visa availability backlogs for Lawful Permanent Residents who want to sponsor their spouse for residency in the US. Residency processing came sometimes take many years. On the other hand, spouses of US citizens are classified as ‘immediate relatives’ and are not subject to these visa backlogs. This bill would redefine ‘immediate relatives’ to include children and spouses of permanent residents, thus removing them from these numerical limitations and residency processing will be much faster, as it should be.

2. On the H-1B Visa

Some of the provisions in the Senate legislation related to the H-1B professional worker category are good and others are bad. On the positive side, the bill increases the regular H-1B cap from 65,000 to 110,000. In addition, it would allow the Department of Homeland Security to increase the H-1B cap up to 180,000 depending on demand. The legislation would also increase the Master’s cap from 20,000 to 25,000.

Another very favorable provision is allowing H-1B workers 60 days to transition between jobs. Our currently law does not allow any transition time, which is unrealistic in our job market. The bill will also allow certain spouses of H-1B visa holders to obtain work authorization, which again is an improvement over current laws.

Unfortunately, the bill also places some unnecessary burdens on employers who use the H-1B program. For example, all employers would be required to test the US labor market before filing an H-1B application. Under current law, only certain H-1B dependent employers (those whose workforce consists of a large number of H-1B workers) must test the labor market first. In addition, the bill places severe penalties on H-1B dependent employers. For example, employers with 50 or more employees would have to pay an additional fine of $5000 per sponsored worker if more than 30 percent of their workforce consists of H-1B workers. This fine increases to $10,000 if their workforce consists of more than 50 percent of H-1B workers. The bill also places an upper limit on how many H-1B workers a company can ultimately hire. We believe that some of these provisions should be changed to make the H-1B program more ‘market-based’ instead of heavily regulated as is proposed by the current legislation.

We recently did a Webinar on the Senate Immigration Bill. To view our powerpoint presentation, click HERE.

Two weeks prior to the initial filing date for FY2014 HIBs, the USCIS published their prediction that the cap would be reached in 5 days. This turned an otherwise normal H-1B filing ‘season’ in a down economy into a mad rush for employers and immigration practitioners.

Hmmmm…so why did the USCIS issue this memo?

There are several interesting theories out there as to why the federal agency would take this unprecedented step. Prior to this year, the USCIS only reported on ‘reaching the cap’ AFTER they started to receive applications – in other words, they used real data. Why would they pull these numbers out of the air for the first time ever? Was it to raise awareness of immigration issues being addressed by Congress as we speak? Was it to inflate our perception of a job market turnaround? Could it simply have been a way to avoid a protracted application period, allowing USCIS staff to settle in and get down to the real work immediately?

Many agree that without the announcement regarding the predicted high demand, the 2014 quota would likely not have been reached for several weeks – if not longer. Last year it took two months, 2011 took seven, and in 2010 the quota was not reached for nearly ten months. Is it a coincidence that – correctly or not – H1B demand is associated with our overall economic health?

I guess the question we ask ourselves is, who benefits from this year’s USCIS H-1B prediction?

Exactly. Clear as mud.

On a related note, how fair is it that they will use a lottery system for all the applications reached in the first five days? I don’t know about you, but we worked extremely hard for months to ensure that our clients’ petitions were received by USICS on April 1. Unfortunately, under USCIS policy an H-1B petition received on April 4th or 5th has the same chance of being picked in the ‘lottery’ as a case received on April 1st. Our politicians often talk about ‘fairness,’ but how fair is this?

Regardless, this year’s H-1B cap is over in 5 days. Under current law, an employer cannot file a new H-1B application until next year. Yet our employers need the flexibility to select qualified professional workers from a global pool right now in order to compete. I wonder if Comprehensive Immigration Reform will cover this…..

Thousands of gun rights supporters learned this recently when they submitted a petition to deport CNN television host Piers Morgan. Apparently, if the White House receives ANY petition with at least 25,000 signatures, they have to respond! And respond they did, reminding 2nd Amendment Supporters (the right to bear arms) of the 1st Amendment (freedom of speech).

In case you’ve been living in a hole, you have heard of the latest round of arguments regarding gun control. Piers Morgan believes there should be stricter gun control laws, and although he is not a U.S. citizen – or even permanent resident – the U.S. Supreme Court upholds that immigrants are covered by the Constitution and the Bill of Rights while in the United States. So he has the right to present his views, and opponents have the right to try to get him deported.

Did you ever wonder what sort of visas people like Piers Morgan hold? After all, he’s a British citizen, but currently lives in the U.S. and hosts a talk show on CNN. Well, he’s on an “O” visa. This visa allows qualified persons to live and work in the U.S. for up to three years, with no limit on extensions. The catch is that they have to have “extraordinary ability” in athletics, the arts, sciences or entertainment. (Is what Piers Morgan does really extraordinary? Perhaps since he took over Larry King’s time slot on CNN.)

The standards are high for this visa – the Nobel Prize is listed as one possible acceptable achievement. Although an O visa WAS once issued to a Canadian ex-girlfriend of Hugh Hefner. Extraordinary achievement in Bunnyhood, perhaps? And the Beckhams (yes, David and Victoria) were O visa non-immigrants at one time. He for sports, naturally, and she for ….. exquisite bone structure? Actually, I believe Victoria held an O visa for her expertise in fragrances and fashion.

Anyway, more power to the people. I say let’s take advantage of this mass petition thing. We should use our powers for good and do something about those Kardashians.

Ahhhh, office holiday parties. The stuff of legends – or at least movies, jokes and salacious tales. We here at Bashyam Spiro have run the gamut from EXTREMELY casual get-togethers (a pony keg in the conference room) to the more sophisticated. Because Murali and I are the ones who’ve attended the most, he recently asked me which party was my favorite. Humor me while I ponder my response.

The pony keg year was actually really fun. Or it was for me, because I love to play games. I introduced my younger co-employees to a favorite from my tween-hood, Truth or Dare. We learned WAAAAYYYYY too much about each other that night. We also played Pictionary on the big easels, and a little bit of Charades. That would’ve been quite enough for me, but the younger ones decided we needed to play Quarters. ‘Nuf said…..

Another year I had everyone over to my house for “Dirty Santa”, which you may know by its many other names – Chinese Auction (not appropriate for an immigration firm!), Yankee Swap, Black Santa, Naughty Santa, Thieving Secret Santa, Parcel Pass, Christmas Swamp Thing, Greedfest, or Pollyanna. In south central Pennsylvania it is also called “Kamikaze Gift Exchange” (from Wikipedia, my source for all things factual). What’s not to like about a game where you have an equal chance of getting a pair of size 3X white nylon granny panties or a rubber chicken that makes a loud, screaming cackle???

For some reason, the games thing died off for a few years after that. I don’t know why, but people groaned and rolled their eyes when I would enquire “what should we play THIS year”??! Apparently there was some line (of which I was unaware) that we had crossed over. Crossed over, stomped on past, and continued on crossing for so long that we went around a corner and came up to it again.

There was another time when we rented a limousine to take us to a nice dinner, and then haul us from bar to dance club to bar. The problem was, we liked the limo ride more than we liked the bars, so we ended up telling the driver to just drive around the Beltline (the 20-or-so mile highway that loops around Raleigh) while we acted like idiots, and – yes – stood up with our heads through the sunroof.

(Okay, here’s an aside. Why is it called a BELT LINE? That is a contradiction in terms. You can’t be a belt and a line at the same time!! I’m from Northern Virginia where we have the Beltway around D.C. That makes much more sense. Of course it’s not really a “way” around the city because it’s always at a standstill, but that’s another story).

Many times we’ve simply had dinner out at a nice restaurant. Everyone likes to eat good food and enjoy great wine, but those years just aren’t quite as memorable as, for example, the time we rented the upstairs loft of a dive bar called Slims in downtown Raleigh. We catered in Indian food (delish!), and shot pool at the one ripped-up table. It was wonderful until we realized that ALL the cigarette smoke from this lively watering hole wafted up into the loft and hung thickly around our faces like a beekeeper’s helmet net. That was the year I learned how difficult it is to get the smell of smoke out of a leather jacket.

I don’t know, it’s hard to pick a favorite holiday party out of the last 13. I suppose they’re all favorites in a way. They start to blend together, and I’m left with simply fond memories of camaraderie and laughter so hard I almost wet myself. It doesn’t really matter what we do, it’s just being together away from the office and celebrating our successes that makes each get-together special. So, I’ll tell Murali that my favorite party of all time is the one coming up!!

A warm, happy holiday wish to all of you. Thanks for your interest in and support of our law firm. Now get out there and be festive!

In our striving for world dominance, we have recently joined the ranks of “the multi-office firm”. You may have already heard, but one of our attorneys – Rashmi Shah – has moved to Minneapolis, MN. Rather than give up the Nirvana that is working at Bashyam Spiro (ahem), it was decided that she would open up a branch office there.

Rashmi has set up an office, contracted office support staff, and reached out to several communities to spread the good word. She has gotten involved with the Indian-American population, which is about the 8th largest in the 50 states. She has networked with business groups, other attorneys, and professional organizations involved in immigration.

I understand Rashmi has also purchased a warm coat. Minnesota is a beautiful state, with a climate that varies greatly through the seasons. When most people think of Minnesota, though, this is what they envision:

I don’t know how many of you reading this were impressionable young ladies living in the U.S. in the 70’s, but when I think of Minneapolis (or one-half of the Twin Cities, which is what the area is often called) I think of a spunky young woman who could “turn the world on with her smile”. Yes, now you will have that tv theme song stuck in your head all day. I am speaking of the one, the only, Mary Richards. Starring Mary Tyler Moore, this ground-breaking television show was set in the fictional news station WJM of “greater Minneapolis”. It had a huge impact on me (and millions of other young women), showing the title character fighting the sexist corporate world of those times.

So, when I think of Rashmi up there, all alone in her high-tech, satellite Bashyam Spiro office, working hard to ensure the new office is a success, I picture things a little differently. Because I know – just like Mary Richards – she’s “gonna make it after a-all”.

We’ve all heard the sage advice regarding real estate, that the three most important considerations in purchasing are location, location, location. Well, that’s kind of true in many employment-based permanent residency cases, too.

One of the first things you do when a client hires you to do a PERM application is to strategize the case. And one of the first steps in strategizing is figuring out the location for which you will file the Prevailing Wage and test the job market. Many times this is quite simple, and you can immediately move on to the next steps. In other cases, however, “Where”? is not such an easy question to answer.

This is an important issue, because:

The Immigration and National Act, 8 U.S.C. § 1182(a)(5)(A), provides that “[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that…there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor ..” Thus, the Department of Labor’s regulations require an employer to prove through a test of the labor market that that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (emphasis added) (Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007).

For roving employees, tele-workers, traveling salesmen, etc., there really is no “home” for their job. But just as they have lagged behind in responding to other changes in the contemporary workforce, the Department of Labor (DOL) has not yet fully addressed this issue when it comes to Labor Certification. Sometimes, Immigration practitioners have had to play a “let’s see if this will work” game with the DOL Alien Employment Certification office.

For most of us, guidance on this issue began with the Employment Training Adminstration’s (ETA’s) Memorandum of May 16, 1994. In it, the government provided instructions regarding labor certifications (pre-PERM) which stated “applications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.”

Of course, nothing is ever that simple in immigration law. The Board of Alien Labor Certification Appeals (BALCA) has also ruled that “the mere presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location”. If the location is thought to be too rural, or has a Prevailing Wage that is significantly lower, or the employer fails to conduct recruitment on a national scale, DOL has been know to “kick” the application out. If the address of the work site is the same as the alien’s home address, the PERM is likely to pick that up for audit. These scenarios are not necessarily bad, because at least they give you the opportunity to explain case details more clearly. Naturally, though, an audit response can add significantly to the overall processing time.

Some cautious practices can help quite a bit when a job location is in question. You can get a Prevailing Wage for possible work sites, and make sure the employer offers a salary that matches the highest one. You can ensure that the recruitment campaign is widespread – even national. You can post Notices at as many sites as the employer will provide. These are ideas to take into consideration when strategizing your case, and analyzing risk versus benefit.

Hopefully we’ll soon have a Department of Labor that truly understands our modern employment practices. It would be great to have job descriptions, wage reports, recruitment guidelines, etc. that better reflect today’s market.